Darwin Takes the Fifth

What Really Happened at the Kansas Evolution Hearings

by Edward Sisson

Last May, I had the pleasure of participating in the Kansas State Board of
Education’s “evolution” hearings. Readers may recall that
I contributed an essay, “Darwin or Lose,” to the “Darwin’s
Last Stand?” issue (July/August 2004), in which I discussed how the use
of courtroom-style litigation tactics by spokesmen for “mainstream science” has
deformed the scientific debate over the origin of life and its diversification
into the vast array of different species we see today. The hearings gave me
an opportunity to see first-hand the use of such tactics.

High-Profile Hearings

The teaching of evolution became a high-profile issue in Kansas in 1999,
when the board removed evolution from the curriculum. Later, a new majority
on the board voted to put evolution back into the curriculum, and now another
new majority is considering including in the curriculum scientific criticisms
of evolution.

The board organized the hearings to take testimony for and against the scientific
validity of two assertions: (1) that natural chemical processes alone are the
cause of the origination of life (“chemical evolution”), and (2)
that Darwinian “natural selection” alone, without any intelligent
guidance or control, is the cause of the subsequent diversification of forms
of life.

It scheduled six days of testimony—three for the challengers to evolution,
followed by three for its defenders. No objections would be allowed to interrupt
the testimony, and each person who spoke would be subject to cross-examination
by counsel for the other side. Following cross-examination, the three members
of the board conducting the hearings would ask questions.

Two of the individuals most responsible for the hearings, Bill Harris and
John Calvert, offered 23 witnesses to testify over their three days, challenging
the scientific basis for chemical evolution and natural selection. Harris,
professor of medicine at the University of Missouri/Kansas City, and Calvert,
a lawyer, are the co-founders of the nonprofit Intelligent Design Network,
a group that provides scientific and legal resources to state and local education
agencies in support of the teaching of problems with the theory of evolution.

The witnesses included seventeen Ph.D.’s: Ten university science professors
(including Harris), five other science Ph.D.’s who have published books
on evolution and intelligent design, and two university philosophy professors.
The other six witnesses were two masters’ degree holders, three high-school
biology teachers, and Calvert himself, who would provide the legal argument
for why it is lawful to teach criticisms of chemical evolution and natural
selection.

Mainstream Boycott

Harris and Calvert asked me to help prepare their witnesses for cross-examination,
and to prepare to cross-examine the opposition witnesses, but when the board
scheduled the hearings, an advocacy group called Kansas Citizens for Science
(KCFS) promptly called for a boycott. A nonprofit whose directors include scientists
and laypersons, KCFS had been prominent in opposing the board’s 1999
decision to remove evolution from the curriculum. “Scientific merit is
not established through public discourse and debate,” their resolution
stated, “but rather, internally, through a consensus of those with the
specialized background necessary to make such judgment.”

A KCFS executive, Liz Craig, posted on the group’s website that her “strategy
at this point is . . . [to] portray [critics of natural selection] in the harshest
light possible, as political opportunists, evangelical activists, ignoramuses,
breakers of rules, unprincipled bullies, etc.” She added, “Our
target is the moderates who are not that well educated about the issues, most
of whom probably are theistic evolutionists.”

One of the leading institutions of mainstream science, the American Association
for the Advancement of Science (AAAS), issued a press release announcing that
it, too, would boycott the hearings, because “the event is likely to
sow confusion rather than understanding among the public.”

Calling the hearings an “event” disparaged the hearings as serious
attempts to explore the questions at hand, and saying the testimony would “sow
confusion rather than understanding” insulted the witnesses, particularly
the ten university science professors, whose universities presumably engaged
them to teach science precisely because of their proven ability to sow understanding,
not confusion, among their students.

The releases worked, and the boycott held. However, a well-known Topeka trial
lawyer, Pedro Irigonegaray, appeared and announced that he would cross-examine
our witnesses and speak for the defense.

He had had some involvement with evolution and intelligent design several
years earlier, moderating a panel discussion. But it was never clear whom he
represented. A KCFS executive, Jack Krebs, closely and publicly assisted him
throughout the hearings, but he never acknowledged representing KCFS or any
other person or organization. “Mainstream science” was his client,
he announced.

The Hearings

I sat beside Harris and Calvert at counsel table throughout the hearings.
As they began, the press filled the hearing room, an auditorium with a small
stage. Reporters from many national news organizations were present. Video
camera tripods lined both aisles, making it difficult to get to the stage,
where the two counsel tables were located.

Calvert conducted the direct examination. Our witnesses included some of
the major figures in the current challenges to chemical evolution and natural
selection.

Michael Behe, a biochemist at Lehigh University and author of Darwin’s
Black Box, explained “irreducible complexity” and the statistical
improbability of natural selection as the cause of life’s diversity.
Charles Thaxton, co-author of The Mystery of Life’s Origin, testified
to the impossibility of life arising from non-life solely through chemical
processes.

Steven Meyer, one of the editors of Darwinism, Design, and Public Education, explained
the theory of intelligent design and some of the evidence for it. The author
of Icons of Evolution, Jonathan Wells, described the falsified “evidence” for
natural selection presented in high-school biology textbooks. At the conclusion,
Calvert spoke, providing a legal argument for the constitutionality of teaching
the scientific evidence our witnesses had just provided.

KCFS mounted an extensive public relations campaign aimed at the press—indeed,
the group was everywhere, except at the witness stand itself, where
I would have had the opportunity to question them. And it had some indication
of what my line of questioning would be, had they presented witnesses. On the
morning of the second day, from my seat at counsel table, I saw a copy of the “Darwin’s
Last Stand?” issue lying face up on Irigonegaray’s table.

Instead of presenting witnesses, KCFS presented public relations. They held
several press conferences and related events, and manned a booth outside the
hearing room with handouts characterizing the hearings as an “attack
on scientists,” describing our side as “anti-science activists,” condemning
Intelligent Design as a pseudo-science, and (in an outreach to the “theistic
evolutionists” of KCFS’s website post) arguing that evolution does
not deny the role of a divine creator in the creation and development of life.

Ad Hominem Examination

As a result of the boycott, my role of cross-examining the other side’s
witnesses was reduced to preparing to cross-examine Irigonegaray. But my other
role remained: to help Harris and Calvert prepare their witnesses for Irigonegaray’s
cross-examinations. In light of the KCFS strategy to portray our side as “evangelical
activists,” we expected the cross-examinations would be implicit ad
hominem attacks.

Irigonegaray confirmed our expectations. He directed his questions not to
the substance of the witnesses’ testimony, but to their beliefs on other
matters, in an attempt to paint each witness as an “evangelical activist” and “ignoramus.” Invariably
his first three questions were: “What is the age of the earth?”, “Do
you believe in common descent?”, and “Do you believe that humans
are descended from pre-hominids?” He also cross-examined Calvert on his
legal argument. But he did not direct his questions to the merits of the witnesses’ scientific
testimony.

On the fourth day of the hearings, Irigonegaray took the podium and presented
what he labeled a “closing argument.” This amounted to a two-hour
diatribe focused on two points. First, he denied that evolution, as taught
in the schools, postulates that no intelligence is necessary to account for
the diversity and complexity of life. In this, he was appealing to KCFS’s “target[,]
the moderates who are not that well educated about the issues, most of whom
are probably theistic evolutionists.”

Second, he denounced the members of the board and Calvert as being motivated
by political interests and for wasting taxpayer money. In this, he was applying
KCFS’s “strategy [to] portray them in the harshest light possible,
as political opportunists” and “breakers of rules.”

Irigonegaray used the hearings not as an opportunity to debate science, but
as an opportunity to defend his side against the charge of atheism and to score
political points against board members who will soon be up for reelection.
Why—other than to retain the allegiance of “theistic evolutionist
moderates” who are “not well educated about the issues”—would
he deny the obvious fact that evolution as taught in the schools asserts that
no intelligent intervention was necessary to originate life or to produce any
of the diversity and complexity of life? Why—other than to harm their
reputations—would he deliver personal attacks on board members?

Rule-Breakers

While he spoke, I took notes to prepare to cross-examine him. And then Irigonegaray
revealed just which side was best described, to use KCFS’s words, as “breakers
of rules.” The procedural rules clearly stated that anyone who spoke
would be subject to cross-examination. Indeed, he had used the rule to question
our lead counsel after his presentation.

But when he concluded his speech, he announced that he was a lawyer giving
an argument, not a witness, and thus he would refuse to undergo cross-examination—even
though he had himself taken advantage of the right of cross-examination the
day before, when he questioned our side’s lead lawyer, who was also a
lawyer giving a legal argument.

Indeed, as part of his presentation, he read a lengthy statement from a KCFS
executive who was in the room at that very moment. Obviously, the author could
have read his own statement in person at that time, but then he would have
been subject to cross-examination. Irigonegaray’s tactic effectively
allowed the author to testify, yet escape cross-examination.

The tactic mimicked Clarence Darrow’s conduct of the Scopes trial,
where he got the right to cross-examine William Jennings Bryan only after agreeing
that he would then sit to be cross-examined by Bryan. But after cross-examining
Bryan, Darrow announced that he had no defense, asked the jury to find Scopes
guilty, and closed the evidence—thereby escaping the witness stand himself.

According to KCFS, the hearings were improper because “scientific merit
is not established through public discourse and debate” but “internally” through
the “consensus” of scientists who have a “specialized background.” But
what if more and more scientists who have the specialized background necessary
to judge the issues are challenging that consensus? Must the people’s
elected representatives merely rubber-stamp the “consensus”?

Artful Dodgers

As noted above, the fundamental objection of the spokesmen for “mainstream
science” to the hearings was that the “public discourse and debate” should
be excluded from the process by which the public decides whether statements
have scientific merit. But to the contrary, where the issue concerns the teaching
of public-school students, public discourse and debate are not merely permitted,
they are necessary.

All of us should applaud the efforts of the Kansas State Board of Education,
which conducted fair, professional hearings and provided ample time (three
days per side) for each side to present its scientific testimony, and provided
for cross-examination by counsel to properly test that testimony. The board
properly refused to serve as a mere rubber stamp. It invited scientific challengers
to testify before it and invited the defenders of the consensus, too.

Our witnesses stood up to public cross-examination by legal counsel. The
other side dodged it. Yet it is the other side’s position—the side
that hides from public cross-examination by counsel—that is being taught
in our schools across the country.

Those whose position is already being taught in our schools should, when
invited by the people’s elected representatives, present witnesses who
will submit themselves to public cross-examination by prepared legal counsel
to assure us, the public, that the positions being taught to our children are
sound and valid.

Postscript. On August 9, the board voted 6–4 to approve the
proposed changes pending review by a Denver-based education consultant. A final
vote is expected in September or October.

Edward Sisson is a partner at a large Washington-based international law firm, specializing in litigation arising out of multi-million-dollar corporate acquisitions. He also maintains an extensive pro bono practice in the areas of international democracy, human rights, and the arts. His law degree is from Georgetown University and his bachelor (of science) from the Massachusetts Institute of Technology. ?Darwin or Lose? is a shortened and revised version of his ?Teaching the Flaws in Neo-Darwinism,? which appeared in Uncommon Dissent: Intellectuals Who Find Darwinism Unconvincing, edited by William Dembski (ISI Books, 2004).

“Darwin Takes the Fifth” first appeared in the September 2005 issue of Touchstone. If you enjoyed this article, you'll find more of the same in every issue.

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